Something There Is that Doesn’t Love a Wall

Chief Justice John Roberts speaks to third year law students from Mississippi College School of Law and the University of Mississippi School of Law in Jackson, Mississippi.

It will now get even more interesting to be Chief Justice John Roberts, as the Supreme Court will soon consider challenges to Trump’s abuse of presidential emergency powers. At least 16 state attorneys general have filed suit contending that Trump’s action to build his wall is unconstitutional.

One can anticipate expedited review and a Supreme Court decision this term. And the Chief Justice is likely to be the deciding vote.

On a few occasions, Roberts has decided to clip Trump’s wings, mainly out of concern for the reputation of the Supreme Court as an institution, and partly to position himself as the court’s new center (and a rightwing center at that.)

One key case involved Roberts’s abrupt turnabout in NFIB v. Sebelius, where the court’s five conservatives were expected to overturn the Affordable Care Act. Instead, Roberts came up with contorted reasoning that the ACA was not legal under Constitution’s Commerce Clause, but was permissible under Congress’s power to tax. However, under Roberts’s reasoning both the individual mandate and the required state expansion of Medicaid were illegal.

Roberts-watchers detected a double bank shot on the chief justice’s part. Having the Court throw out Obama’s signature achievement would have been too risky politics. At the same time, declaring that portions of it violated the Commerce Clause set up future rulings overturning federal laws based on a resurrection of a pre-1937 view of the Constitution.

Last November, Roberts was plainly offended at Trump’s characterization of an “Obama judge.” He indignantly declared:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

Alas, Trump for once was right. The judiciary has never been more politicized.

In three more recent rulings, Roberts declined to vote for high court review of decisions that went against the far right, and left lower court rulings stand. But these were narrow procedural affairs, and not landmark decisions.

The most analogous case to the forthcoming decision on Trump’s wall—and it’s not a reassuring one—is Roberts’s ruling in the 5-4 Trump v. Hawaiicase last April, holding that a ban on travelers from eight predominantly Muslim countries was an entirely reasonable exercise of the president’s executive power.

As Roberts correctly pointed out, the statute governing immigration gives the president a great deal of authority. Roberts and the 5-4 majority rejected the contention that by targeting Muslims, Trump was in violation of the Constitution’s Establishment Clause, which prohibits religious discrimination.

Roberts, for his career on the bench, has had an expansive view of presidential power. However, there is reason to believe that the case involving Trump’s wall is in a wholly different category that may trouble Roberts.

The upcoming challenge to Trump’s abuse of his power to declare a state of emergency presents a far more fundamental constitutional question that goes beyond the immediate issue of what constitutes a legitimate emergency. In devising separation of powers, the framers of the Constitution were absolutely clear that Congress, and not the executive, controls the power of the purse.

If the Roberts Court upholds Trump’s right to violate that separation, based on the flimsiest of trumped up emergencies, the Court would be fundamentally altering the Constitution. And as House Speaker Nancy Pelosi among others has observed, if the President gains broad new emergency powers, then President Brown or President Warren could use the same powers to redirect money to combat global climate change, the plague of gun violence, and Lord knows what else.

You want to talk about a national emergency? Let's talk about today, the one-year anniversary of another manifestation of the epidemic of gun violence in America. That's a national emergency. Why don't you declare that emergency, Mr. President? I wish you would. But a Democratic president can do that.

Roberts-watchers may think they detect a Chief Justice who can be counted on to defer to the most expansive construction of executive power. But John Roberts is at least as wily as Donald Trump. This isn’t over till its over.

The culprit: an alliance between two centrist Democratic presidents with Wall Street and neoliberal ideology.

About the Author

Robert Kuttner is co-founder and co-editor of The American Prospect, and professor at Brandeis University's Heller School. His latest book is Can Democracy Survive Global Capitalism? In addition to writing for the Prospect, he writes for HuffPost, The Boston Globe, and TheNew York Review of Books.